Citation Nr: 21002452
Decision Date: 01/13/21	Archive Date: 01/13/21

DOCKET NO. 17-24 777
DATE: January 13, 2021

REMANDED

Entitlement to service connection for traumatic brain injury (TBI) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1962 to July 1966.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA). This case was remanded in May 2019 and October 2020 for further development.

In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.

Entitlement to TBI.

Pursuant to the Board’s last remand, the Agency of Original Jurisdiction (AOJ) obtained a new medical opinion regarding the Veteran’s asserted TBI. The examiner opined the Veteran does not have a TBI but relied on the absence of medical evidence during and immediately after service. The examiner also asserted that the Veteran is not credible. See October 2020 VA medical opinion. This opinion is inadequate because it relies on the absence of evidence as negative evidence refuting the Veteran’s report of symptoms beginning soon after service. Thus, remand is warranted. Upon further review and contrary to the Board’s last remand, the Board finds that a VA examination or telehealth interview, and not merely a VA medical opinion, is warranted so that the examiner has the opportunity to examine and interview the Veteran to determine whether he has a TBI.

The matter is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records from November 2020 to the present.

2. After the above development is completed, the AOJ should arrange for a VA examination or telehealth interview of the Veteran to determine the nature and likely cause of any TBI. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination or interview of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following:

Is it at least as likely as not (50% or greater probability) that the Veteran has residuals of TBI that were either incurred in or otherwise related to his military service? Please explain why. The examiner must discuss the March 2007 VA treating physician opinion regarding gun blasts in service, the July 2007 diagnosis of TBI in VA treatment records, the Veteran’s report of onset of symptoms soon after discharge of service, and the article related to blast cause injuries in service received in September 2019. The examiner may not rely solely on the absence of medical evidence during and immediately after service and must discuss the Veteran’s credible lay statements.

3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures.

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Sandler, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.